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Symantec Corporation v. Acronis

February 8, 2013

SYMANTEC CORPORATION, PLAINTIFF,
v.
ACRONIS, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jacqueline Scott Corley United States Magistrate Judge

ORDER RE: DEPOSITIONS OF RUSSIAN WITNESSES (Dkt. Nos. 155, 163)

United States District Court Northern District of California

Now pending before the Court is a joint discovery letter brief regarding Plaintiff

Symantec's motion to compel the depositions of certain witnesses located in Russia. (Dkt. 20 Nos. 155, 163.) After carefully considering the parties' arguments and evidence, and having 21 had the benefit of oral argument on December 10, 2012, the Court GRANTS Symantec's 22 motion in part. 23

DISCUSSION

Plaintiff Symantec Corporation ("Symantec") filed this patent litigation lawsuit against

25 two defendants: Acronis, Inc., a United States corporation, and Acronis International GmbH, a 26

Swiss entity (collectively "Acronis" or "Defendants"). Symantec alleges that Defendants' 27 backup, recovery and security software infringes several of Symantec's patents. 28 2 employees. Symantec contends that these deponents are the most knowledgeable about the 3 design, development and coding of the accused products. Acronis has refused to produce 4 these witnesses on the ground that they are employed by a third party, namely, Acronis 5

Russia, and therefore can only be required to attend a deposition through a third-party 6 subpoena. 7

8 another party to the litigation by serving a notice of deposition upon that party." Calderon v. 9

Symantec served Rule 30(b)(1) deposition notices on Acronis for five Acronis Russia

Pursuant to Federal Rule of Civil Procedure 30, "a party may request the deposition of

Experian Information Solutions, Inc., 2012 WL 5377799 *2 (D. Id. Oct. 31, 2012). Rule 30, 10 unlike Rule 34, does not require a party to produce for deposition any person that is merely in 11 the party's "control;" rather, if the party from whom discovery is sought is a corporation, "the 12 party seeking discovery may either designate an appropriate individual or describe the subject matter to be covered in the proposed deposition and allow the corporate deponent to designate 14 its own spokesperson under Rule 30(b)(6)." Id. "However, if the party seeking discovery 15 chooses to designate a particular witness, the person so designated must be an 'officer, 16 director, or managing agent' of the corporation." Id.; see also Schwarzer, et al. California 17

Practice Guide: Federal Civil Procedure Before Trial § 11:1419 (2011) (a corporate party 18 must produce for deposition any "officer, director or managing agent" named in a deposition 19 notice). If the person sought to be deposed is not an officer, director or managing agent, the 20 person's deposition must be sought by third-party subpoena. And, if the witness is located 21 overseas, "the procedures of the Hague Convention or other applicable treaty must be 22 utilized." Calderon, 2012 WL 5377799 at *2. 23 It is undisputed that the proposed deponents are not officers or directors of Defendants.

Defendants contend that although the proposed deponents are employed by a sister 25 corporation--Acronis Russia--they are not employed by either defendant and therefore cannot 26 be considered "managing agents" as a matter of law. See, e.g., Newmarkets Partners, LLC v. 27

Oppenheim, 2009 WL 1447504 *1 (S.D.N.Y. May 22, 2009) (refusing to compel Rule 30 28 deposition of officer of related corporation); Honda Lease Trust v. Middlesex Mut. Assur. Co., 2008 WL 3285242 *2-3 (D. Conn. Aug. 7, 2008) (holding that Honda had no obligation to 2 produce employees of its related companies for deposition). The Court finds, however, that 3 notwithstanding any purported separate corporate structure, Acronis Inc. treats Acronis Russia 4 employees as its own employees for purposes of discovery; indeed, it has represented to the 5 courts of the United States that "Acronis" employees in Russia are employees of Acronis, Inc. First, in a patent infringement action initiated by Acronis, Inc. in the District of Massachusetts (Acronis, Inc. v. Ludid8, LLC, 11-10772), Acronis, Inc.'s initial disclosures 8 identified several "Acronis, Inc." employees in Moscow, Russia. (Dkt. No. 149-5.) At oral 9 argument, Acronis could not, and did not, represent that the Moscow, Russia "Acronis, Inc." 10 employees it disclosed in Lucid8 are actually employed by an entity different from the 11

Second, in a patent infringement action against Acronis, Inc. in the Eastern District of

Missouri, PB&J Software, LLC v. Acronis, Inc., 12-690-SNLJ, Acronis, Inc. moved the 14 district court to transfer the action to the District of Delaware. In support of its motion, 15

Acronis, Inc. represented that its "employees" with knowledge of technical matters are located 16 in Massachusetts and Moscow, Russia. (Dkt. No. 149-1 at 4, ...


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